Abstract

Footnotes (157)

Using the URL or DOI link below will
ensure access to this page indefinitely

Based on your IP address, your paper is being delivered by:

New York, USA

Processing request.

Illinois, USA

Processing request.

Brussels, Belgium

Processing request.

Seoul, Korea

Processing request.

California, USA

Processing request.

If you have any problems downloading this paper,please click on another Download Location above, or view our FAQFile name: SSRN-id2194109. ; Size: 666K

You will receive a perfect bound, 8.5 x 11 inch, black and white printed copy of this PDF document with a glossy color cover. Currently shipping to U.S. addresses only. Your order will ship within 3 business days. For more details, view our FAQ.

Quantity:Total Price = $9.99 plus shipping (U.S. Only)

If you have any problems with this purchase, please contact us for assistance by email: Support@SSRN.com or by phone: 877-SSRNHelp (877 777 6435) in the United States, or +1 585 442 8170 outside of the United States. We are open Monday through Friday between the hours of 8:30AM and 6:00PM, United States Eastern.

Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment

Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement. In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum. In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry. This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance. The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt. Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.

However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost. And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease. This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant. Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system. In these situations, the criminal justice system becomes a negative sum game. Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.

The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally. Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.

Date posted: December 27, 2012

Suggested Citation

Simmons, Ric, Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment (December 27, 2012). Harvard Journal of Law and Public Policy, Vol. 36; Ohio State Public Law Working Paper No. 182. Available at SSRN: http://ssrn.com/abstract=2194109

Contact Information

Ric Simmons (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th AvenueColumbus, OH 43210United States

Feedback to SSRN

Feedback (Required)

1,000 character maximum

Email Address (Required)

If you need immediate assistance, call 877-SSRNHelp (877 777 6435) in the United States, or +1 585 442 8170 outside of the United States, 8:30AM to 6:00PM U.S. Eastern, Monday - Friday.